Citation Nr: 0622612
Decision Date: 07/31/06 Archive Date: 08/10/06
DOCKET NO. 04-03 484 ) DATE
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On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Fargo, North Dakota
THE ISSUE
Entitlement to a disability rating in excess of 10 percent
for service-connected tinnitus, to include entitlement to
separate evaluations for each ear.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
D. Havelka, Counsel
INTRODUCTION
The veteran's active military service extended from June 1970
to March 1972, and from October 1973 to June 1981.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 2003 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Fargo, North Dakota.
FINDINGS OF FACT
The veteran's service-connected (bilateral) tinnitus is
assigned a 10 percent rating, the maximum rating authorized
under Diagnostic Code 6260.
CONCLUSION OF LAW
There is no legal basis for the assignment of a schedular
evaluation in excess of 10 percent for bilateral tinnitus.
38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §4.87, Diagnostic
Code 6260 (2002, 2005); Smith v. Nicholson, 451 F.3d 1344
(Fed. Cir. 2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's representative requested an increased
disability rating for the veteran's service-connected
tinnitus, specifically a 10 percent rating for each ear. The
RO denied the claim because under Diagnostic Code (DC) 6260
because there is no provision for assignment of a separate
10 percent evaluation for tinnitus of each ear. The
veteran's representative appealed that decision to the Board.
In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) the U.S.
Court of Appeals for Veterans Claims (CAVC) held that the
pre-1999 and pre-June 13, 2003 versions of DC 6260 required
the assignment of dual ratings for bilateral tinnitus. VA
appealed this decision to the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) and stayed the adjudication
of tinnitus rating cases affected by the Smith decision. In
Smith v. Nicholson, 451 F. 3d 1344 (Fed. Cir. 2006), the
Federal Circuit concluded that the CAVC erred in not
deferring to the VA's interpretation of its own regulations,
38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limits a
veteran to a single disability rating for tinnitus,
regardless whether the tinnitus is unilateral or bilateral.
Subsequently, the stay of adjudication of tinnitus rating
cases was lifted.
The veteran's service-connected tinnitus has been assigned
the maximum schedular rating available for tinnitus.
38 C.F.R. §4.87, Diagnostic Code 6260. As there is no legal
basis upon which to award separate schedular evaluations for
tinnitus in each ear, the veteran's appeal must be denied.
Sabonis v. Brown, 6 Vet. App. 426 (1994). The provisions of
the Veterans Claims Assistance Act have no effect on an
appeal where the law, and not the underlying facts or
development of the facts, is dispositive in a matter.
Manning v. Principi, 16 Vet. App. 534, 542-543 (2002).
ORDER
A schedular evaluation in excess of 10 percent for tinnitus
is denied.
____________________________________________
Gary L. Gick
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs